Justice Kennedy

The endgame of the culture war.

June, for conservatives, has been of late the “cruelest month” at the Supreme Court, as the decisions finally roll forth. Many expect—with a combination of apprehension and resignation—that in the critical case of Obergefell v. Hodges, Justice Anthony Kennedy will furnish the fifth vote for installing same-sex marriage as a constitutional right. But already, during the oral argument in the case in April, the solicitor general, Donald Verrilli, set off tremors in the land when Justice Samuel Alito raised the question of the precedent in the 1983 case of Bob Jones University.

In that case, the Court held that the IRS was justified in witholding tax-exempt status from a fundamentalist Christian school because its policies on race were “not in accord with public policy.” The school had abandoned a policy of refusing to admit black students, but it retained a policy of barring, to its students, dating and marriage across racial lines. When Justice Alito raised the possible relevance of this case, the solicitor general did not dismiss the dark possibilities here. He drew wide attention simply by saying, “I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue.” As the line went, they would have to look into it.

But the hard truth is that it will take no hard look by the administration—it will require no decision at all by the White House—just as the original case required no decision from the Reagan administration. The denial of the tax exemption was made by the IRS itself in response to an orchestrated campaign of complaints directed to the IRS. And why did the action take this path? Because there were no complainants claiming that they had been denied access to the university or any of its programs on account of their race. No case could be brought against Bob Jones under the Civil Rights Acts, whether of 1866 or 1964. The university contained students of all races who came of their own free will, and evidently they had been willing to live under the rules on interracial dating and marriage. It was, rather, comparable to a dating service taking in members of all races, who either preferred, or were willing, to confine their dating within their own ethnic or racial group.

And that state of affairs, plainly put, is what made the decision of the Supreme Court so wildly inapt: for there was absolutely nothing in the public policies of the United States—nothing in the statutes, executive orders, or decisions of courts—that made it unlawful for persons to discriminate on the basis of race in their own private choices of partners in sex and marriage. All of the precedents involved statutes that barred people, by law, from marrying or cohabiting with partners outside their own race.

The question then was whether the principle that barred racial discrimination in marriage law would indeed extend to private acts of discrimination in choosing partners. The signs were everywhere that even the most advanced on the left did not accept such a principle. For in journals of the liberal literati, such as the New York Review of Books, one could find personal ads reading: “SWM seeks SWF.” Translation: Single white male seeks single white female. The New York Review would never publish an ad saying “White landlord seeks white tenant.” That it would publish such an ad for persons seeking partners showed that the principle that brought Bob Jones University afoul of the law was a principle accepted even by the New York Review of Books.

But if the Supreme Court establishes a new constitutional right to same-sex marriage, the situation will be decisively altered. The religions that reject, in their moral teaching, homosexual acts and same-sex marriage will indeed be marked, in their defining character, as groups no longer “in accord with public policy.” Then there will be no need for the Obama administration to formulate and justify a further decision—no need to play the villain and deny tax exemptions to churches and religious schools that do not accord with the new orthodoxy on marriage and sexuality. Only two things will be required: (1) the orchestration of a campaign of complaints directed to the IRS and (2) an IRS sufficiently complaisant to churn out the decision that the administration and its allies so evidently want.

The Obama administration and the Democrats have already shown formidable skill in networking; it will be no strain to produce the deluge of letters to the IRS. And as for the IRS, do we have any reason to doubt that it is quite up to the political work that must be done?

Last month, a unanimous Supreme Court held that a Pennsylvania woman named Carol Bond may challenge a federal law under which she was prosecuted, on grounds that Congress had exceeded its powers and intruded upon the sovereignty and authority of the states. Until Bond v. United States, it was widely agreed that only states could advance such a claim.

Last week the Supreme Court reentered the business of dubious liberal policymaking with its decision in a case from California, Plata v. Brown. With Justice Kennedy writing for himself and four colleagues, the Court sustained a lower court’s order requiring the state to reduce the number of convicted criminals in its correctional facilities by as many as 46,000.